Joe Mathews: Prop. 8 loss proved gift to gay rights movement

Joe Mathews

How do you win in California? Lose big first.

That’s a very old bit of wisdom in a state founded by people who abandoned their homes and families to move here and fail to get rich in the Gold Rush. But this lesson has been given fresh context by a new book (Jo Becker’s “Forcing the Spring”) and a new documentary film (“The Case Against 8,” which opened in theaters last week) that provide behind-the-scenes accounts of the successful effort to invalidate Proposition 8, California’s ban on same-sex marriage.

The passage of Prop 8 in 2008 was a huge defeat for advocates of marriage equality, and, in its aftermath, it seemed prudent to pull back and wait for years before seeking to overturn the decision. But a small group of political consultants, Hollywood players like Rob Reiner, and lawyers (among them Ted Olson and David Boies) grasped that Prop 8, while a loss, was a strange sort of gift to their cause. Instead of cowering in the face of a voter verdict against marriage equality, they chose to show how a popular vote against the rights of gay couples was itself evidence that such couples faced discrimination and needed the protection of the courts. As one member of the legal team challenging Prop 8 tells Becker in her book, “The other side is going to pound the table and say, ‘The people have spoken! The people have spoken!’ And we’re going to say, ‘Yeah, that’s part of the problem.’”

It took less than five years for a U.S. Supreme Court ruling last spring to effectively overturn Prop 8 — and in that time, thanks in no small part to the 2008 loss, public opinion shifted in favor of same-sex marriage both in California and across the country.

One might think that in California, another story of using defeat in service of triumph would draw a ho-hum reaction. But the film and especially the book have come under hot attack from liberals who say the team challenging Prop 8 was reckless and glory-seeking.

I find such criticism depressing, because the impatience of the Prop 8 challengers is precisely what California — facing persistent problems in schools and taxes and prisons — needs.

It’s as though today’s cautious California leaders have forgotten our past. Throughout California history, we have prospered by accepting the ill, the war-damaged, the politically persecuted, the poor — the world’s losers — and giving them a second chance. Even our signature industries were built on failure. We became an oil giant because of men like Edward Doheny, who had experienced business losses and learned hard lessons before coming to California. Silicon Valley, the land of the failed startup, has built today’s Internet explosion on the hard lessons of the late-’90s tech bubble. And no one knows how to come back from bombs like Hollywood. How many rom-com Hiroshimas did Matthew McConaughey drop on the moviegoing public before he figured out how to make Oscar gold?

This success-from-failure pattern runs even deeper in California politics. The victory of an egregious 1964 ballot measure blocking fair housing legislation was overturned in court, then went on to inspire a stronger fight against housing discrimination. Proposition 13 was Howard Jarvis’ third try at a game-changing tax measure; two previous attempts blew up, defeats from which he learned and drew strength.

Certainly, it would be nice if making progress in California didn’t require getting kicked in the head first, but that’s not our pattern. Of course, it’s not just the big defeat that’s essential to victory; it’s having the right attitude about that defeat.

The successful challengers to Prop 8 couldn’t be sure of victory. But as “Forcing the Spring” and “The Case Against 8” show, they shaped their legal fight to educate the public so that even defeats would win hearts and minds. And they capitalized on setbacks along the way. When the U.S. Supreme Court barred broadcasts of federal court hearings on Prop 8, they made a virtue of the blackout, stepping up Internet coverage of the case and encouraging a famous screenwriter to produce a play of the proceedings.

Indeed, the very existence of the new book and film about Prop 8 show the virtues of the big loss. Prop 8 is a dead letter, but it’s still being used to advance its opponents’ cause.

This may be the bloody secret of success in this beautiful and brutish place. You gotta get out there and get clubbed over the head. And then you gotta grab that club and never stop hitting back.